Assessing Arizona: Courts Vie With Lawmakers, Voters for Last Word

By Peter Brown

Peter A. Brown, assistant director of the Quinnipiac University Polling Institute, is a former White House correspondent with two decades of experience covering Washington government and politics. Click here for Mr. Brown’s full bio.

Regardless of one’s view on U.S. District Judge Susan Bolton’s decision to block the most contentious parts of Arizona immigration law, the fact that it was left to a federal judge to decide a pressing national policy dispute is a sign of the times.

It is difficult to find empirical data, but more than in the recent past, the federal judiciary seems to be serving as the “court of last resort” for those who lose political fights in Congress or at the ballot box.

Certainly more than was true a generation ago, the courts are increasingly viewed as political actors with predictable rulings based on the president who appointed the judges or other personal factors about the people issuing the rulings.

There are federal cases challenging the will of millions of Californians who enacted a constitutional amendment banning gay marriage and the decision by Congress and President Barack Obama to overhaul the nation’s health care system.

The cases raise the issue of whether judges, or lawmakers and voters, should have the final say on what most people see as largely political questions.

Ending Up at the Supreme Court

This is not a new phenomenon. Franklin Roosevelt’s crowning New Deal achievement was eventually tossed out by the Supreme Court. But these kinds of cases do seem to be more prevalent.

And, like the Arizona decision that Judge Bolton handed down last week in Phoenix, the gay marriage and health care cases are almost certain to be appealed up the judicial chain to the U.S. Supreme Court.

How the highest court will rule on any of the three cases is anyone’s guess, though the high court often splits along ideological lines with a conservative 5-4 majority.

But it’s likely that whatever happens in any of them, none will answer a basic question of American democracy:

Where does the right of the people and their elected representatives to decide the rules of society end and the courts’ power to overrule those decisions begin?

Of course, the question of majority rule versus minority rights goes back to the founding of the republic.

Going Against Public Opinion

Judge Bolton’s decision clearly goes against public opinion, not just in Arizona, but nationally. In the Northern District of California, Chief U.S. District Judge Vaughn R. Walker is hearing the challenge to the state’s ban on gay marriage. The challenges to the health care overhaul are in preliminary stages in various federal courts, but polls show many more voters oppose the law than support it.

All of these questions, many argue, are political ones that represent policy decisions by voters and their representatives. But at a time of seemingly historic levels of partisan division in U.S. society, the views and values of the judges involved are scrutinized much more than in the past.

Supporters of the Arizona law were quick to point out that Judge Bolton, who drew the case by random assignment and is one of five judges in the Phoenix division of the Arizona District appointed by a Democratic president. Eight judges there were appointed by Republican presidents.

In the gay marriage case, Judge Walker was appointed by a Republican president. According to the San Francisco Chronicle, he is gay. If he should throw out the voter-passed amendment — as many journalists who covered the court hearings speculated, based on his questioning — it would not be surprising if his reported sexual orientation enters the ensuing political debate.

The political question is whether these cases will turn the role of the courts along with the decisions handed down by judges into election issues this fall – and, whether one side or the other can convince voters that they can change the judiciary with their votes.

Stirring Animosity to Motivate Voters

Running against courts has not been all that productive politically in recent history, although activists on both sides of the aisle at times have sought to generate animosity against rulings to motivate their voter bases.

That was certainly true about a sizable chunk of the U.S. population in the 2000 Bush v. Gore case that decided the presidential election.

There is some evidence, however, that the wave of anti-incumbent and anti-establishment feeling that appears to be sweeping the electorate this year could provide another opportunity to see if the activists’ view of the partisan nature of judges is catching on.

A Quinnipiac University national poll taken this April found that by 76%-18%, voters believed that Supreme Court justices let their political views enter into their decisions and did not base their rulings just on the law.

With that thinking abroad in the electorate, it won’t be hard to see how the Bolton decision, and a ruling by Judge Walker expected before Election Day, could add to the populist rage against the political status quo.

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About Capital Journal

Capital Journal is WSJ.com’s unique site for analysis of the political and policy maneuvering in Washington in the era of Barack Obama. It features the Capital Journal columns and occasional other postings by executive Washington editor Gerald F. Seib, and will house Political Wisdom, the Journal’s daily aggregation of the smartest political analysis from around the Internet. Also look for regular columns by Peter Brown of the Quinnipiac University Polling Institute and occasional contributions from others.